The opinion of the court was delivered by: The Honorable Carla Woehrle, United States Magistrate Judge
Present: The Honorable Carla Woehrle, United States Magistrate Judge
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: (In Chambers)
On September 14, 2011, the pro se petitioner filed this petition for writ of habeas corpus. The petition is subject to dismissal, on its face, for the following reasons.
Petitioner is in state custody, but it is not clear whether he is challenging the legality of that custody in this purported habeas petition under 28 U.S.C. § 2254, and he has not identified the nature of the custody. There are two statutes under which a person may challenge the legality of state custody in a habeas action in federal court. A person in custody under a state court judgment may proceed under 28 U.S.C. § 2254; a person in state custody under some basis other than a state court judgment may proceed under 28 U.S.C. § 2241. See Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004); White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004); McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003). Because Petitioner has not made clear the nature of his custody, it is not clear whether this action falls under § 2254 or § 2241.
Petitioner has not established personal jurisdiction by naming a proper respondent (normally a specific official, such as a warden or director, with the power to order Petitioner's release). 28 U.S.C. § 2242; 28 foll. § 2254, Rule 2.
Petitioner has not shown that he has exhausted available state court remedies. For § 2254 petitions the exhaustion requirement is defined at 28 U.S.C. § 2254(b)-(c). For § 2241 petitions by persons in state custody there is a common law exhaustion requirement. See, e.g., McNeeley, 336 F.3d at 825-26.
Petitioner has not clearly stated a claim that he is in custody in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2242, 2254(a). In fact, it is not clear whether Petitioner is seeking to challenge the legality of his custody as such (that is, the fact or duration of his custody), or conditions of confinement. If Petitioner seeks to challenge conditions of confinement he should file a civil rights complaint under 42 U.S.C. § 1983, not a habeas corpus petition under 28 U.S.C. § 2254 or 2241.
This is the fifth deficient habeas petition Petitioner has submitted to this court, and Petitioner has been repeatedly advised of the requirements for filing and litigating a habeas corpus petition in federal district court. See Nos. EDCV 05-1084-AHS(CW), ...